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Fair use under direct attack in Atlantic v. Howell

In a legal brief filed for Atlantic v. Howell, the RIAA once again stated its distaste for users who copy CDs for personal, private use.

The RIAA wrote that “it is undisputed that Defendant possessed unauthorized copies” – referring to the Howell’s collection of mp3 files made from their own CDs – and noted that “once Defendant converted Plaintiffs' recordings into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies.”

The Judge’s question was, “Does the record in this case show that Defendant Howell possessed an ‘unlawful copy’ of the Plaintiff's copyrighted material, and that he actually disseminated that copy to the public?”

Similar sentiments were heard in testimony leading up to the conclusion of Capitol Records v. Jammie Thomas, where Sony BMG’s head of litigation equated Fair Use to stealing and testified that copying music for personal use is just “a nice way of saying ‘steals just one copy.’”

Admittedly, the wording in its Atlantic v. Howell brief is vague and its exact message unclear. Judging purely on the statements expressed in its brief for Atlantic v. Howell, opinion seems divided on the true intent: does ripping music to a computer for personal use produce an unlawful copy? Or is the act of placing said music into a shared folder that makes it unlawful? As the RIAA chose to use the word “unauthorized” instead of “unlawful,” interpretation is further complicated; “unauthorized” and “unlawful” have two very different legal definitions, and many think that the RIAA did not even answer the Judge Wake’s question.

The piracy section on the RIAA’s website offers further confusion, with its legal section making no mention of the legalities of “ripping.” The closest analogue to ripping would be directly copying music to a CD-R, which says that while users have “no legal ‘right’” they can generally avoid legal confrontation by making sure said music is only copied for personal use.

An official response from the District Court will likely hinge on the RIAA’s distinction between “unauthorized” and “unlawful,” and whether or not it feels Howell is liable for ripping the CDs themselves, or placing them in a p2p client’s shared folder.

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RIAA and Reality
By Bluestealth on 12/18/2007 1:17:14 AM , Rating: 2
I agree with the RIAA on the fact that when I purchased a CD I was not granted the right to make unauthorized copies for others. However, other than that, any other right they wish to deny me in my opinion is a legal fantasy. I will buy your music if you choose reasonable prices, and give me high quality copies in an non-DRMed format.

Hell I even buy sheet music, which to download, I had to use a DRMed viewer. However they allowed me to print one authorized un-DRMed copy. With that copy I am or should be allowed to do pretty much any damned thing I want bar copy it for others. This gives me the equivalent of what I could go out and buy, a high quality copy, with no DRM which I can do anything I want with.

The problem only comes about when they want me to buy a ridiculously overpriced CD for their one hit wonder. Sure they offer may offer me a poor to average bit-rate DRMed/non-DRMed digital download of that track, but its not a lossless un-DRMed copy. To get those I must get an illegal copy, or buy the whole damn crappy overpriced CD with maybe 1-2 tracks. That just isn't going to happen. Until they start giving consumers what they actually want, I will continue to take an liberal view of copyright law.

"And boy have we patented it!" -- Steve Jobs, Macworld 2007
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